Why the EFF’s Involvement in the Cody Wilson 3D Printed Gun Case Just Made Things Interesting

Earlier this week I wrote about a group of 15 Republican congressmen co-signing an amicus brief in support of the creator of the 3D printed LIberator handgun, Cody Wilson, and his lawsuit against the State Department. After publishing the 3D printing files for his one-shot handgun online, Wilson was ordered to remove them by the State Department because according to them he was violating an act that regulated the distribution of weapons and information to international sources.

Because his case involves firearms, it’s only natural that a handful of conservative lawmakers, gun advocacy groups, and conservative think tanks would back Wilson. But perhaps the most important backer of his lawsuit is the Electronic Frontier Foundation, a relatively apolitical free speech advocacy group that focuses on digital rights and how they apply to civil liberties in the US.

Like the group of Congressmen, the EFF recently filed an amicus brief with the Fifth Circuit Court of Appeals on behalf of Cody Wilson and Defense Distributed. While many of Wilson’s advocates are focusing on what they believe to be a violation of his Second Amendment rights, an argument that I believe has little merit, the EFF is backing him based on the State Department violating his First Amendment rights–an argument that I believe has far more merit.

While the EFF isn’t a very popular organization with the government, they are quite popular among activists and they could generate a lot of support for Wilson that he may not have received otherwise. And while lawmakers won’t have as much luck swaying the courts as they hope they might, public support could embolden Congress to respond legislatively depending on the outcome.

“The First Amendment does not permit the government to presumptively criminalize online speech on a certain topic, and then decide on a case-by-case basis which speech to license, without any binding standards, fixed deadlines, or judicial review. Yet that is the regime advanced by the government in this case, criminalizing Americans who use the Internet to publish lawfully-obtained, nonclassified technical information relating to firearms and other technologies with military applications. The licensing regime at issue in this case is a prior restraint that lacks the procedural safeguards required by the First Amendment to prevent discriminatory censorship decisions.”

Cody Wilson with the Liberator .380-3D Printed Gun

When the State Department cited International Traffic in Arms Regulations (ITAR) as the reason Wilson needed to remove the Liberator files from the Internet, they essentially deemed that Wilson was exporting weapons overseas; however, the Supreme Court has already ruled that free speech can only be restrained by national security concerns, and only when absolutely necessary in order to prevent proven, immediate threats. But even under the most basic of scrutiny, 3D printable files of a one shot, plastic handgun hardly seems to be much of a national security threat. It seems that the State Department clearly overstepped their bounds and needlessly broadened the reach of the ITAR to suit their agenda without demonstrating the need to do so.

The EFF continues:

“The regulation impermissibly sacrifices speech for the convenience of the government, broadly criminalizing speech and putting the onus on speakers to seek leave to publish. The Department of Justice warned the administrators of ITAR over thirty years ago that the First Amendment would not allow such a prepublication review regime. Yet, rather than developing appropriately tailored regulations, the government has revived the overbroad scheme of prior restraint it once disavowed. The government will be unable to establish that this scheme is consistent with the First Amendment.”

At its core the issue here between Wilson and the State Department is strikingly similar to one of the EFF’s earliest victories, the case of Bernstein v. US Department of State. The Bernstein case centered around the sharing of open source encryption software that was made freely available online. When Bernstein, a Berkeley college student, designed encryption software that he called Snuffle, intending both to release it and publish a paper about its development, the government attempted to prevent him from doing so by requiring that he submit his ideas to them for review.

Using the Arms Export Control Act (AEVA) and ITAR, they attempted to force Bernstein to register as an arms dealer (for writing code) and required him to obtain a license from the government to share his ideas–or face some not insignificant civil and criminal penalties. After a lengthy four year court battle the Ninth Circuit Court of Appeals ruled that software code was considered speech and should be protected by the First Amendment. They also ruled that the government’s regulations preventing its publication were unconstitutional. The parallels between both cases are immediately obvious.

“The First Amendment requires that speech be allowed except in the narrowest circumstances. Here, the export controls regime does not provide for judicial oversight or require the government to prove the appropriate conditions for a prior restraint of speech. Rather, the law criminalizes as a general matter the online publication of unclassified designs and documentation about a wide range of technologies. The Supreme Court has been very clear that any speech licensing regime has to be governed by definite standards of review, judicial oversight, and prompt deadlines. This process doesn’t contain any of those safeguards to prevent capricious censorship,” explained Kit Walsh, EFF Staff Attorney.

The State Department provided Wilson with no opportunity to challenge their classification of his files as weapons that required him to seek a license to publish them, or the ability to appeal any denials of a license–nor are there any specific laws in place that classify 3D printed gun files to be weapons requiring licenses. It should also be mentioned that they have not provided any reasons why 3D printable files are different than existing plans and schematics to make firearms using traditional fabrication methods, currently freely available online. According to the EFF that makes the State Department’s request to Wilson a violation of his First Amendment rights to free speech.

Cody Wilson

Wilson’s case will ultimately come down to whether the courts are willing to view all digital files, including those of firearms, as a freedom of speech issue, or if they will classify 3D printable firearms differently. Whichever direction the court goes, the decision will influence more than just Wilson’s future, it could potentially have some rather devastating effects on how freedom of speech is viewed by lawmakers, and how it relates to digital media. Because part of the State Department’s actions included demanding that Wilson and his website Defense Distributed obtain a license to share the files, if the courts continue to back them it could have a chilling effect on the media and what we are and are not allowed to report. Discuss this story in the 3D Printed Gun forum on 3DPB.com.

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